115 P. 979 | Idaho | 1911
In 1895 the village, now city, of Nampa granted the Boise City Irrigation & Land Co. an easement and right of way for the construction of lateral ditches to convey water for irrigation purposes upon certain of its streets. The company accepted this grant, constructed its ditches and supplied water to lot owners in the village, and its rights and franchises, whatever they were, were subsequently acquired by the Nampa & Meridian Irrigation District, the defendant in this action. In 1909, the city of
The complaint alleges that the lot owners have been supplied with water from the defendant’s system for several years preceding the commencement of the action; that their lands have been improved by the water so supplied, and that such lands cannot be irrigated from any other system. Under these facts the lot owners have become entitled to the use of water from the defendant’s system and the defendant must, in the first instance, construct its system within its franchise limits at its own expense. It cannot compel the user of water to pay for any part of the system. (Pocatello Water Co. v. Standley, 7 Ida. 155, 61 Pac. 518.) The fact that the delivery of water has been made more expensive or more burdensome to the defendant is not a sufficient reason for refusing to deliver the water. (Niday v. Barker, 16 Ida. 73, 101 Pac. 254.)
These lot owners are therefore entitled to the water which they have demanded, unless the acts of the city constitute a justification or excuse for the failure of the defendant to deliver it. There is no contention that they in any way participated in the destruction of the defendant’s ditches by the city, and it seems that their right to the water could not be defeated by any act of the city, even if wrongful, in which they did not join, regardless of whether or not the defendant
However that may be, the principal question argued, and which it is desired to have determined, is whether the duty of reconstruction rests upon the city or upon the defendant. By sec. 2238, Eev. Codes, subd. 3, cities and villages are authorized to “establish, lay out, alter, open any streets or alleys, and improve, repair, light, grade or sprinkle, drain the same and remove any and all obstructions therefrom, establish grades and construct bridges, cross-walks, culverts and sewers thereon, and repair and maintain the same; . . . . and defray the expenses of the same out of the general fund of such city or village .... (or) by a special assessment in accordance with the provisions of the fifth subdivision of this section.” The subdivision referred to provides the method of levying such special assessment.
Sec. 2315, as amended by Laws of 1909, p. 174, confers authority to issue bonds to “provide for the grading, paving, construction and laying out of streets and alleys.” Under these sections cities and villages have ample power to establish the grade of their streets, and to reconstruct the roadbed of the streets on the grade thus established, and it is generally held that for damages incidentally resulting to abutting property from the lawful exercise of the power so conferred, they are not liable to the owner in the absence of a statute expressly imposing such liability. (28 Cyc., Municipal Corporations, 1069; Smith v. City of Washington, 61 U. S. 135, 15 L. ed. 858; City of Denver v. Vernia, 8 Colo. 399, 8 Pac. 656; Roberts v. City of Chicago, 26 Ill. 249; City of Pontiac v. Carter, 32 Mich. 164; Shattner v. Kansas City, 53 Mo. 162.)
It is contended here that as the plaintiff city granted the defendant’s predecessor in interest, the Boise City Irrigation & Land Co., an easement and right of way for the construction of these ditches, which was accepted by that company by the construction of its ditches and the use and operation of the same, that the defendant, on succeeding to the interest
“When the company placed its gates in the streets of the city under the contract referred to, it did so subject to the right of the city to make such changes in the surface of the street and the alignment of the sidewalk as might be necessary to render the street safe and convenient for public travel. In making needed repairs and changes in the streets, the city is but an instrument of the state, an agent of the public, and it cannot barter away its rights or fetter its duty to make such repairs and changes. To subject itself to the expense of changing the appliances of the water company in the streets whenever it became necessary to change them, by reason of repairs, would be a serious impairment of its rights, and an onerous addition to its duties.” (Belfast Water Co. v. City of Belfast, 92 Me. 52, 42 Atl. 235.)
In National Water Works v. City of Kansas, 23 Fed. 921, it was held that a water company in laying its pipes in the
In a recent case it is said:
“While municipalities may by ordinance grant to individuals and corporations the privilege of occupying the streets and public ways for lawful purposes, such as railroad tracks, poles, wires, gas and water pipes, such rights are at all times held in subordination to the superior rights of the public, and all necessary and desirable police ordinances that are reasonable may be enacted and enforced to protect the public health, safety and convenience, notwithstanding the same may interfere with legal franchise rights. A water company placing its pipes in the streets under a franchise contract with the city, does so in subordination to the superior rights of the public through its duly constituted municipal authorities to construct sewers in the same streets whenever and wherever the public interest demands; and if in consequence of the exercise of this right the water company is compelled to relay its pipes, in the absence of unreasonable or malicious conduct, it has no cause of action against the corporation for reimbursement on account thereof.”
It was consequently held that the cost of removing and relaying the water pipes, conduits and the like interfered with in the laying of sewers, could not be assumed by the city in the contract for the construction of its sewers. (Anderson v. Fuller, 51 Fla. 380, 120 Am. St. 170, 41 So. 684, 6 L. R. A., N. S., 1026.)
The supreme court of the United States has held that the imposition upon a gas company of the cost of changes in the location of its pipes and mains necessitated by the construction of a branch system does not impair its contract rights acquired under an exclusive franchise to supply gas to the city, and that the gas company has no such property rights in the location of its pipes and mains as to make the imposition upon it of such cost a taking of property without compensa
Similarly, it is quite uniformly held that a change of grade in the streets does not make the city liable for the cost of necessary changes in pipe-lines laid in a street under franchise from the city. (Scranton Gas & Water Co. v. City of Scranton, 214 Pa. 586, 64 Atl. 84, 6 L. R. A., N. S., 1033, 6 Ann. Cas. 388; Stillwater Co. v. Stillwater, 50 Minn. 498, 52 N. W. 893; Columbus Gas Light Co. v. Columbus, 50 Ohio St. 65, 40 Am. St. 648, 33 N. E. 292, 19 L. R. A. 510. See, also, note, 6 L. R. A., N. S., 1026.)
This case seems to us clearly analogous to the eases which we have cited, and they would be decisive of the question raised in a suit between the city and the Boise City Irrigation & Land Co. The question arises: Does the defendant, as an irrigation district, stand in any different situation from its predecessor? We think not. An irrigation district is a public quasi corporation, organized, however, to conduct a business for the private benefit of the owners of land within its limits. They are the members of the corporation, control its affairs, and they alone are benefited by its operations. It is, in the administration of its business, the owner of its system in a proprietary rather than a public capacity, and must assume and bear the burdens of proprietary ownership. In the case at bar it has simply purchased the system of the Boise City Irrigation & Land Co., and it acquired in the streets of the city of Nampa only such rights as its predecessor had. The control of the city streets, as this court has often held, rests solely in the city, and no other public corporation, or quasi corporation, can be permitted to limit such control, or to burden its exercise, by requiring the city to replace its property when a change in its location is necessitated by the lawful exercise of the power of the city over its streets.
It is alleged in the complaint that the defendant’s ditches, if reconstructed upon the surface, would be a nuisance forbidden by the city. This, of course, is not a proper method of alleging that a surface ditch is a nuisance in a particular
Finally, it is contended by the defendant that it has no funds or means of raising funds for the purpose of constructing ditches under the plaintiff’s streets; that such construction must be paid for from the construction fund of the district, as it is in the nature of new work and not a repair of the existing system, and that as that fund has been exhausted, no additional fund for that purpose can be raised except by an issue of bonds, which requires the assent of the voters of the district.
The law governing irrigation districts is found in title 14 of the Political Code. It appears from an examination of the provisions of this title that the cost of the purchase of irrigation works, or of the construction of new works, must be paid from the construction fund of the district, which is raised either by a bond issue under section 2396, by the levy of a special assessment under section 2391, or by the levy of an assessment in lieu of canceled bonds under section 2404. As a prerequisite to either of these modes of raising money, it is necessary that the assessment or bond issue be authorized by a two-thirds vote of the electors of the district, although in case of assessments in lieu of bonds, the authorization of the bond issue carries with it the power in the directors to substitute the assessment for the bonds without a further vote. By section 2399, the cost of such
. . . . All assessments and tolls shall be listed and carried out in the regular assessment-book and collected by the treasurer at the time and in the manner of the regular annual assessment. All special assessments are a lien on the lands assessed from the time when they are ordered.” The levy of these tolls and assessments is within the control of the directors, and does not depend for its exercise upon the will of the electors of the distriet. It appears from this section, when construed in connection with the other sections of the law which we have cited, that the construction fund realized from the proceeds of bonds and assessments is to be used only for the construction of the system as originally contemplated, or for extensions not involved in the original plan of the work; but for maintenance or “repair and improvement of such portion of said canal and works as are completed and in use” a maintenance fund is provided, and from that fund these expenses are to be defrayed. The laying of a pipe-line-
It is unfortunate that lands not directly benefited by this improvement in the defendant’s system should be required to bear any part of the cost of the improvement. The case demonstrates the inapplicability of the irrigation district law to lands within cities and towns. But it has been held in Nampa & Meridian Irr. Dist. v. Brose, 11 Ida. 474, 83 Pac. 499, that lots and lands within a city or village may be included in an irrigation district if they will he benefited thereby, and where such lands are included within the district, the owners thereof are entitled to enforce their rights against the district under the law as it stands, regardless of what that law ought to be.
The judgment will be reversed, with costs to appellants.